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The Real Legacy of the OJ Simpson Trial—You Can Buy Your Way Out of Jail

Too poor to hire a good lawyer, or even make bail? You're out of luck.

Photo Credit: via youtube


Twenty years ago this week, the OJ Simpson murder case began. It ended, of course, with a not-guilty verdict that brought into sharp, cable-TV focus the gaping racial divide in the American criminal justice system. It is an over-simplification to say that white people gasped in shock while black people cheered, but many people in the African American community clearly felt that Simpson's acquittal  represented a rare moment of almost real justice.

Considering that, to this day, black Americans are stopped, frisked, arrested, charged, sentenced and even executed at higher rates than any other racial group, the reaction was more than understandable. It still is.

But if the OJ verdict has opened our eyes to anything about the color-blind letter of the law, it should be this: a black man's check book is just as good as a white man's check book when it comes to putting together a legal team. In the two decades since that trial made us pay attention to court procedure again, bonds have skyrocketed, public defender caseloads have become insurmountable, and defendants who don't have enough money – or not enough of it – aren't always innocent so much as on the way to being proven guilty.

Who ends up in prison and who walks free is a black-and-white issue, sure, but it is increasingly a matter of green.

I don't mean to suggest that our justice system is so flawed that a wealthy person can buy himself an acquittal - expensive attorneys didn't help the Menendez brothers or Scott Peterson or even Martha Stewart. But as Jonathan Rapping, founder of the public defender group Gideon's Promise, told me this week:

Money determines who sits in jail pre-trial. It determines who takes a plea deal, it determines who gets to have a trial and it can influence the outcome of a trial. This is not how our legal system is supposed to work.

Just look at the case of Jonathan Fleming, a Brooklyn man who was  released from prison this spring after serving nearly 25 years for a murder he did not commit – it took place in New York while he was on vacation in Florida. Fleming was finally exonerated – with $93 in his pocket, as you can see from the Guardian video above (ED note: See the video embedded in Guardian story here) – when "new" evidence surfaced, including his phone bill from a Quality Inn in Florida.

Overzealous prosecution and racial bias may have played a role in this and many other wrongful convictions between OJ and today, but sometimes all it takes to prove innocence is one piece of paper – a big needle in a very searchable haystack. Think about it: if the Jonathan Flemings of the world could afford a Johnnie Cochran or a Robert Kardashian, do you think it would take 24 years, seven months and 20 days to set them free?

In theory, the US justice system, often hailed as the best in the world, is heavily weighted in favor of defendants: reasonable doubt, a unanimous jury, a quick-and-speedy trial,  the right to counsel, and all that. What more could an accused person ask for, right? But the odds are stacked against defendants – especially poor ones – because the system, beautifully designed as it was, is cracking under its own weight.

In the past few decades, before but especially after the OJ verdict, tougher law enforcement measures and the war on drugs have led to a more than tenfold increase in our prison population without any corresponding expansion of the public defense system. Considering that 80% of people funneled through our courts rely on court appointed counsel, this is not a small problem. We have a criminal justice system that is not living up to its potential in four out of five cases.